MUHAMMAD LUQMAN AHMAD vs MUNIR AHMAD And ANOTHER

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 arises out of an. Application for ejectment filed by petitioner against respondent No. l seeking his eviction from a shop situate in Faisalabad, on the ground of default in payment of rent with effect from 1st of September, 1983 to 31st of July, 1985. The rate of rent was stated to be Rs.250 per month. In the written reply filed by respondent No. l the plea that he was a defaulter was repudiated. It was stated that he was paying rent in advance.

2. Originally the application for ejectment was dismissed by the Rent Controller on 10th May, 1987 but on appeal filed by the petitioner the issues framed were recast and the case was remanded to the Rent Controller for decision afresh after recording of evidence of the parties. The Rent Controller on 14-2-1989 held respondent No. l to be a defaulter and directed his eviction.

3. Aggrieved, respondent No. l went in appeal and succeeded before the learned Additional District Judge on 19th of December, 1990 who reversed the findings of the Rent Controller on issue relating to default and dismissed the ejectment petition of the petitioner.

4. It has been contended by the learned counsel for the petitioner that the appeal filed by respondent No. l has been accepted by the Additional District Judge without adverting to the evidence on the record. According to the learned counsel the grounds on the basis of which the order of the Rent Controller has been reversed are not sustainable in law. The learned counsel for respondent No. 1 has, however, defended the impugned order.

5. As already mentioned, the application for eviction was accepted, by the Rent Controller who found on the basis of the evidence on the record that respondent No. l had failed to prove that he had been paying or tendering the rent due. The appeal filed by respondent No. l was accepted by the Additional District Judge. The grounds which prevailed with the Additional District Judge for non-suiting the petitioner were firstly that the fact that the rent was being received during the minority of the petitioner by his father Abdul Hameed was not pleaded in the ejectment application and secondly that the landlord has failed to discharge the initial onus resting on him.

6. After hearing the learned counsel for the parties and perusing the record, both these grounds appear to be highly untenable. As regards the first contention, suffice it to say that the petitioner had categorically alleged in the ejectment petition that respondent No. l failed to pay or tender the rent and was a defaulter. In the written statement it was denied that respondent No. l had committed default and instead it was pleaded that the advance rent was being paid by the respondent. It was not at all necessary in the circumstances of the case that the landlord should have specifically alleged that his father was receiving the rent during the period he was a minor. In any case both the parties have led evidence to that effect and it is an admitted position between them.

7. So far as the second ground is concerned, the view taken by the Additional District Judge runs counter to the law declared by the Supreme Court of Pakistan in Allah Din v. Habib (PLD 1982 Supreme Court 465) wherein it I has been held that although the initial onus to prove default lies on the landlord but since it is a negative fact, the moment the landlord makes a statement on oath denying having received any rent, the onus shifts to the tenant who has to affirmatively establish that he has paid/tendered the rent. It has been further held that in case the evidence led by the parties is equally balanced, it is the tenant who should fail. Unfortunately the Additional District Judge appears to be oblivious of the true legal position while deciding the appeal. The judgment rendered by him is, therefore, without lawful authority.

8. It also needs to be observed that as the Additional District Judge was reversing the findings recorded by the Rent Controller, it was not only necessary for him to have appraised the entire evidence on the record but also to notice the reasoning which had prevailed with the Rent Controller for taking contrary view. (See Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617). This exercise too, was not undertaken by the lower Appellate Court. It thus appears that the appeal filed by respondent, No.1 has not been decided in accordance with law.

There shall be no order as to costs.